Open source: Microsoft lawyer on patent question

If everything is on schedule, Microsoft general counsel Brad Smith should be concluding his appearance at the Open Source Business Conference in San Francisco right about now — including a full hour of questions from a panel and the audience. I’ll be linking to reports from the event as they’re posted. In the meantime, I spoke with Smith on the phone prior to his speech today and asked him, among other things, to address what appears to be the top Microsoft-related question on the minds of the open-source community: Why won’t the company list the patents it alleges are infringed by Linux and other open-source programs?

On the phone, Smith talked about how Microsoft makes those kinds of disclosures in confidential talks with companies over prospective patent licensing deals. He said Microsoft doesn’t feel that it should take the unique step of listing them publicly. He added:

Will we publish, on the Web, a broader list? That is not something that any other company in our industry does today. And yet, we do find ourselves as a company repeatedly getting requests from other companies to license their patents, to pay them royalties. We believe that, especially as long as there are other companies in our industry that come to us, asking us to take a license and pay a royalty, that it is important for us to work on a reciprocal basis — and that means providing information on our patents in a forum where they are providing information to us on their patents. We’re not comfortable being the only company in our industry, certainly, to take a unilateral step, especially when that step could change the dynamic, subsequently, for discussions with other companies.

I pointed out that Microsoft has already taken a unique step by going public with the allegations about the number of patent violations by Linux and open-source programs. Why not take that further step and publish the actual list? Smith referred to the comments above as an answer to that question, as well.

How will that type of answer be received by the open-source community members attending the event? Stay tuned for links to coverage of Smith’s appearance.

Update, 8:40 p.m.: Charles Cooper of CNet News.com has an interesting summary of the event, starting with this line: “The advance billing had the audience assuming Daniel was about to enter the lions’ den. What they got was more along the lines of Mister Rogers talks tech.”